92 Decision Citation: BVA 92-27537
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-05 603 ) DATE
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THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Verma, Associate Counsel
INTRODUCTION
The veteran had recognized service from May 1945 to June
1946. This matter came before the Board of Veterans'
Appeals (Board) on appeal from an October 1991 rating
decision from the Manila, Philippines, Regional Office (RO),
which confirmed the rating decision of June 1980, denying
service connection for the cause of the veteran's death.
The appellant was notified of the June 1980 denial on August
8, 1980. A notice of disagreement was filed in reference to
the 1980 rating action. A statement of the case was issued
on January 14, 1981. No substantive appeal was filed. In
December 1981, the appellant was notified that an appeal had
not been filed and the rating action had become final. The
appellant attempted to reopen the claim on November 9,
1990. In October 1991, the RO denied the claim. The notice
of disagreement was received in January 1992. The statement
of the case was issued in January 1992. The substantive
appeal was received in March 1992. The appeal was received
and docketed at the Board in April 1992. The appellant acts
as her own representative in this matter.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant, the widow of the veteran, contends that the
RO committed an error in denying service connection for the
cause of the veteran's death. She asserts that her husband
died of illness related to his service-connected pulmonary
tuberculosis. She further contends that she should be paid
benefits because her husband had a service connected
disability at the time of his death.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104,
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims file
and for the following reasons and bases, it is the decision
of the Board that the appellant has not submitted new and
material evidence to reopen the claim of entitlement to
service connection for the cause of the veteran's death.
FINDINGS OF FACT
1. The veteran died in April 1980, at age 62. The
immediate cause of death was cardiopulmonary arrest due to
metastatic adenocarcinoma. At the time of the veteran's
death, his only service-connected disability was pulmonary
tuberculosis, far advanced, bilateral, inactive, which had
been rated as 50 percent disabling since 1973.
2. The RO denied entitlement to service connection for the
cause of the veteran's death in June 1980 and no appeal was
filed.
3. Additional evidence submitted since that time is
cumulative of evidence previously considered.
CONCLUSIONS OF LAW
1. The decision of the RO in June 1980, denying the
appellant's claim of entitlement to service connection for
the cause of the veteran's death is final. 38 U.S.C.A.
§ 7105 ; 38 C.F.R. § 3.104(a) (1991).
2. Evidence received since the RO denied entitlement to
service connection for the cause of the veteran's death is
not new and material and the claim is not reopened.
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant previously claimed service connection for the
cause of the veteran's death, but it was denied in June
1980. The veteran's condition had been variously diagnosed
by his treating physicians. The veteran was granted a
100 percent evaluation for his service-connected pulmonary
tuberculosis from March 1955. However, during an
examination in February 1972 it was reported that the
veteran's pulmonary tuberculosis, bilateral, had become
inactive since September 1971. As a result, the disability
evaluation for his tuberculosis was reduced to 50 percent
effective from September 1973. The veteran's subsequent
claims for restoration of a 100 percent compensable rating
for his service-connected disease were disallowed on the
ground that the evidence submitted showed no significant
change in his condition. In April 1980, the veteran died of
cardiopulmonary arrest caused by metastatic adenocarcinoma
of the colon.
In June 1980, the appellant, widow of the deceased veteran,
filed a claim for death benefits, which was denied on the
ground that the veteran's death did not result from a
service-connected disease. The appellant filed a notice of
disagreement in December 1980. A statement of the case was
issued in January 1981. However, the appellant failed to
perfect the substantive appeal.
The United States Court of Veterans Appeals (Court) has held
that, when a veteran seeks to reopen a claim previously
disallowed, the Board must determine whether the evidence is
new and material. Decisions of the RO are final.
38 U.S.C.A. § 7105; 36 C.F.R. § 3.104 (a). Nevertheless, if
new and material evidence is presented or secured with
respect to a claim which has been disallowed, the claim will
be reopened and the former disposition reviewed.
38 U.S.C.A. § 5108. New evidence means more than evidence
which was not previously physically of record. To be "new"
additional evidence must be more than merely cumulative.
The additional evidence must also be "material". That is,
it must be relevant and probative and there must be a
reasonable possibility that, when viewed in the context of
all the evidence, both new and old, the additional evidence
would change the outcome. Colvin v. Derwinski, 1 Vet.App.
171, 174 (1991); 38 C.F.R. § 3.156(a)
If the Board determines that the claimant has produced new
and material evidence, the case is reopened and the Board
must evaluate the merits of the claim in light of all the
evidence, both new and old. Manio v. Derwinski, 1 Vet.App.
171, 174 (1991); 38 C.F.R. § 3.156 (a).
With this requirement in mind, the Board has reviewed the
entire record to determine if the appellant has submitted
new and material evidence to reopen the claim. The records
received since the June 1980 rating decision are essentially
cumulative in nature. They show that the veteran had
bilateral pulmonary tuberculosis; however, he died of
cardiopulmonary arrest due to metastatic adenocarcinoma.
The records do not show that service-connected pulmonary
tuberculosis, evaluated as 50 percent disabling at the time
of his death, contributed materially or substantially to the
veteran's death. Additional evidence also includes hearing
testimony of the appellant and her daughter. This testimony
was to the effect that they believe the veteran's terminal
illness was related to his service connected disability.
This opinion had already been expressed and is not new.
There is no evidence on file new or old to indicate that the
veteran's service connected pulmonary tuberculosis
contributed to the cause of his death. Additionally, the
terminal hospital records which were on file in 1980
disclose that prior to the exploratory laparotomy,
ileo-transverse colostomy, the veteran had some
complications related to his respiratory system. The
hospital summary described that the veteran's metastatic
adenocarcinoma was not caused by his service connected
pulmonary tuberculosis; rather, it had afflicted him
concomitantly with his pulmonary condition. Furthermore, it
is noteworthy that the record of the veteran's last
hospitalization is devoid of any finding by the attending
physicians, which could corroborate that the service
connected pulmonary tuberculosis materially or substantially
contributed to cause his death. The hospital records
include notations that the veteran's lungs were normal
during the last weeks before his death. While we are very
sympathetic with the appellant because of the loss of her
husband, the testimony and additional evidence offered in
support of the claim do not reveal any thing new or material
which would possibly change the outcome of this case.
The appellant further contends that as a surviving spouse of
the deceased veteran, she is entitled to the benefits, at
least, in part to what her husband was receiving before his
death. However, we note that within the meaning of 38
U.S.C.A. § 1318, benefits are payable to the surviving
spouse only when the deceased veteran was entitled to
receive compensation at the time of his death for service
connected disability which was rated totally disabling for a
period of 10 years or more immediately preceding his death.
Facts in the instant case reveal that the deceased veteran's
pulmonary tuberculosis was evaluated 50 percent disabling at
the time of his death. Thus, no benefits can be paid to the
appellant under the foregoing provision.
For the reasons stated above, we find that none of the
information received since the last denial relates the cause
of the veteran's death to the service connected pulmonary
tuberculosis. Therefore, we can conclude that the
additional evidence is not new and material and does not
serve as a basis to reopen the claim. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156 (a).
ORDER
New and material evidence not having been submitted to
reopen a claim of entitlement to service connection for the
cause of the veteran's death, the benefit sought on appeal
is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
W. H. YEAGER, JR., M.D. JAN DONSBACH
JOAQUIN AGUAYO-PERELES
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.